BEHRAMSHAW HORMANSHAH BHARDA Vs. DASTORJI DR HORMASDYAR KAYOJI MIRZA
LAWS(GJH)-1979-7-8
HIGH COURT OF GUJARAT
Decided on July 13,1979

BEHRAMSHAW HORMANSHAH BHARDA Appellant
VERSUS
DASTOORJI HORMASDYAR KAYOJI MIRZA Respondents

JUDGEMENT

B.J.DIVAN - (1.) This special civil application is under Article 228 of the Constitution and the petitioners herein pray that this Court should ball for the record and proceedings of Special Civil Suit No. 72 of 1978 from the Court of the Civil Judge Senior Division Valsad and dispose of the said suit or In the alternative that this Court should determine the issue as to the interpretation of the Constitution of India and thereafter return the said case to the Court of the Civil Judge Senior Division Valsad with a direction to dispose of the matter in the light of the judgment of this Court on the said issue. The petitioners herein are some of the defendants in the suit pending in the Court of the Civil Judge Senior Division Valsad. Respondents Nos. 8 to 11 are also defendants in the said suit. Respondents Nos. 1 to 7 in this special civil application are the plaintiffs in the said suit. The facts leading to the present special civil application are as follows:- On August 23 1971 one Kekobad Faramrose Sidhva executed a gift deed in respect of a plot of land situated at Udwada in Pardi Taluka of Valsad District. This land at the time of the gift was agricultural land. The donee of the gift was Minochar Nusserwanji Pundole. Petitioners Nos. 6 (a) to 6 (d) and petitioners Nos. 7 to 9 are the heirs of Sidhva and respondents 8 to 11 are the heirs of Pundole. Petitioners 1 and 2 are Parsi priests carrying on the profession of priesthood at Udwada. Respondents 1 and 2 are priests respondent No. 1 being the high priest at Udwada at the Chief Parsi Fire Temple called Atash Beheram at Udwada. Respondent No. 3 is an Anjuman that is an association of the descendants of the original nine families which settled at Udwada and respondents Nos. 4 to 7 are also connected with Atash Beheram at Udwada in one capacity or another. On January 29 1974 the Collector of Valsad granted permission to Pundole for building an Agiyari which is referred to as Atash Aderan on the plot of land which had been gifted by Sidhva in 1971. On March 1 1975 the Collector of Valsad granted permission to Pundole for converting the plot of land to non-agricultural use. In 1975 respondents Nos. 1 to 7 filed Special Civil Application No. 314 of 1975 challenging the two orders of the Collector of Valsad and that special civil application was ultimately rejected on March 24 1975 by this High Court because according to the High Court there was nothing illegal in the grant of permission by the Collector of Valsad. Thereafter construction work of the Agiyari Atash Aderan was started on this plot of land and in due course of time the construction work was completed and according to the materials on the record of this special civil application the total cost of construction came to rupees three lacs. At this stage it may be pointed out that according to Parsi belief there are three types of sacred fire:- Atash Beheram which is considered to be most sacred:- the second in point of sanctity is Atash Aderan which is referred to in popular parlance as Agiyari and the third in point of sanctity is Atash Dadga. Both Atash Beheram and Atash Aderan are required to be consecrated according to proper ceremony more elaborate ceremonies being required in the case of Atash Beheram and as a matter of fact there are four centres of Atash Beheram through India namely Udwada Navsari Surat and Bombay. Atash Dadga does not require any consecration. Though it is a sacred fire it can be established by any Parsi house-holder and it could also be kept in an Agiyari without any consecration. After the work of construction of the Agiyari on Pundoles land was completed but before the consecration of the sacred fire had taken place on October 25 1976 respondents Nos. 1 to 7 filed a suit being Special Civil Suit No. 114 of 1976 in the Court of the Civil Judge Senior Division Valsad at Navsari. This very suit was subsequently transferred to the Court of the Civil Judge Senior Division Valsad when the Court at Valsad was set up during the pendency of the suit and the suit is now numbered as Special Civil Suit No. 72 of 1978 in the Court of the Special Civil Judge Senior Division at Valsad.
(2.) On October 25 1976 on the application presented by the plaintiffs in that suit the Civil Judge Senior Division Navsari granted an ad interim injunction against the defendants of that suit namely the petitioners herein and respondents 8 to 11 restraining them from carrying out the ceremonies of consecration of the sacred fire in the Agiyari and thus setting up Atash Aderan that is Agiyari on Pundoles land. On November 13 1976 the learned Civil Judge Senior Division Navsari vacated the ex parte injunction that had been granted earlier and it is the case of the petitioners herein that on November 14 1975 the Agiyari on Pundoles land was concerted. Respondents 1 to 7 challenge that contention of the petitioners. On that very day later in the course of the day an appeal against order was filed by the present respondents 1 to 7 in this High Court and on a Civil Application filed in that appeal from order ad interim injunction was obtained but according to the petitioners by the time the ad interim injunction could be served upon the petitioners herein and respondents 8 to 11 the ceremony of consecration in the newly built Agiyari had been completed. On November 18 1976 this High Court passed an order permitting the sacred fire in the Agiyari to be maintained and on November 24 1976 A. D. Desai J. of this High Court passed an order in the appeal from order directing that status quo should be maintained. On February 10 1977 the petitioners applied to the learned Civil Judge Senior Division Navsari praying that two issues should be tried as preliminary issues and on that very day this application was rejected by the learned Judge. Subsequently the issues were framed and settled in the suit on August 8 1978 In November 1978 the present petitioner applied by way of civil application in the appeal from order praying that an order should be passed under Article 228 of the Constitution withdrawing one issue regarding the interpretation of Articles 25 and 26 of the Constitution to this Court and praying for reliefs under Article 228. It was pointed out that a civil application in an appeal from order was not the appropriate procedure for obtaining relief under Article 228 and that a substantive position was necessary for obtaining relief under Article 228 and thereupon on December 23 1976 when the civil application was placed before S. H. Sheth J. of this High Court the learned Single Judge directed that no order should be passed in the Civil Application and thereafter on January 24 1979 the present special civil application came to be filed.
(3.) In the plaint in Special Civil Suit No. 72 of 1978 in the Court of the learned Civil Judge Senior Division Valsad the contention of the plaintiffs is that there is a custom with was recognised as far back as 1883 by the leader of Parsi community late Dadabhoy Naoroji which custom was also recognised by the then High Court of Baroda according to which custom only Atash Beheram at Udwada can be maintained and that without the permission of the high priest of Atash Beheram at Udwada and others connected with that Atash Beheram no other secred fire can be consecrated within certain limits of that Atash Beheram at Udwada the limits in respect of which the custom is claimed is the area between Par river near Pardi and Vaitarna river near Bombay. The plaintiffs further say that in accordance with Articles 25 and 26 they have a right to maintain their religious institutions and to insist that this custom should be continued. It is on the basis of this alleged custom that the plaintiffs have filed Special Civil Suit No. 2 of 1978 and contended that since the Agiyari on Pundoles land at Udwada has been built without the requisite permission it should not be allowed to be consecrated and should not be allowed to be run as an Agiyiri. That is the sum and substance of Special Civil Suit No. 72 of 1978. One of the contentions taken up by the defendants of that suit is that this custom is violative of the fundamental rights of the defendants under Articles 25 and 26 of the Constitution and the custom being violative of the fundamental rights is illegal and without any legal authority and therefore the plaintiffs suit even if such custom is established is liable to be dismissed. In this petition under Article 228 of the Constitution the petitioners want that this issue regarding the validity of the custom alleged by the plaintiffs in the plaint particularly in view of the contention as to validity being required to be judged in the light of the contention of the petitioners based on Articles 25 and 26 of the Constitution should be examined by this Court so that if this High Court comes to the conclusion that the alleged custom would be violative of Articles 25 and 26 and hence illegal and of no binding effect the whole suit at Valsad could be disposed of on the finding recorded by this High Court.;


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